WAIS Document Retrieval

[Code of Federal Regulations]

[Title 5, Volume 3, Parts 1200 to end]

[Revised as of January 1, 1998]

From the U.S. Government Printing Office via GPO Access

[CITE: 5CFR2429]

[Page 400-406]

TITLE 5--ADMINISTRATIVE PERSONNEL

CHAPTER XIV--FEDERAL LABOR RELATIONS AUTHORITY, GENERAL COUNSEL OF THE FEDERAL LABOR RELATIONS AUTHORITY AND FEDERAL SERVICE IMPASSES PANEL

PART 2429--MISCELLANEOUS AND GENERAL REQUIREMENTS

Subpart A--Miscellaneous

Sec.

2429.1 [Reserved]

2429.2 Transfer and consolidation of cases.

2429.3 Transfer of record.

2429.4 Referral of policy questions to the Authority.

2429.5 Matters not previously presented; official notice.

2429.6 Oral argument.

2429.7 Subpoenas.

2429.8 [Reserved]

2429.9 Amicus curiae.

2429.10 Advisory opinions.

2429.11 Interlocutory appeals.

2429.12 Service of process and papers by the Authority.

2429.13 Official time for witnesses.

2429.14 Witness fees.

2429.15 Authority requests for advisory opinions.

2429.16 General remedial authority.

2429.17 Reconsideration.

2429.18 Service of petitions for review of final authority orders.

Subpart B--General Requirements

2429.21 Computation of time for filing papers.

2429.22 Additional time after service by mail.

2429.23 Extension; waiver.

2429.24 Place and method of filing; acknowledgement.

2429.25 Number of copies and paper size.

2429.26 Other documents.

2429.27 Service; statement of service.

2429.28 Petitions for amendment of regulations.

Authority: 5 U.S.C. 7134; Sec. 2429.18 also issued under 28 U.S.C.

2112(a).

Source: 45 FR 3516, Jan. 17, 1980, unless otherwise noted.

[[Page 401]]

Subpart A--Miscellaneous

Sec. 2429.1 [Reserved]

Sec. 2429.2 Transfer and consolidation of cases.

In any matter arising pursuant to parts 2422 and 2423 of this

subchapter, whenever it appears necessary in order to effectuate the

purposes of the Federal Service Labor-Management Relations Statute or to

avoid unnecessary costs or delay, Regional Directors may consolidate

cases within their own region or may transfer such cases to any other

region, for the purpose of investigation or consolidation with any

proceedings which may have been instituted in, or transferred to, such

region.

Sec. 2429.3 Transfer of record.

In any case under part 2425 of this subchapter, upon request by the

Authority, the parties jointly shall transfer the record in the case,

including a copy of the transcript, if any, exhibits, briefs and other

documents filed with the arbitrator, to the Authority.

Sec. 2429.4 Referral of policy questions to the Authority.

Notwithstanding the procedures set forth in this subchapter, the

General Counsel, the Assistant Secretary, or the Panel may refer for

review and decision or general ruling by the Authority any case

involving a major policy issue that arises in a proceeding before any of

them. Any such referral shall be in writing and a copy of such referral

shall be served on all parties to the proceeding. Before decision or

general ruling, the Authority shall obtain the views of the parties and

other interested persons, orally or in writing, as it deems necessary

and appropriate.

Sec. 2429.5 Matters not previously presented; official notice.

The Authority will not consider evidence offered by a party, or any

issue, which was not presented in the proceedings before the Regional

Director, Hearing Officer, Administrative Law Judge, or arbitrator. The

Authority may, however, take official notice of such matters as would be

proper.

Sec. 2429.6 Oral argument.

The Authority or the General Counsel, in their discretion, may

request or permit oral argument in any matter arising under this

subchapter under such circumstances and conditions as they deem

appropriate.

Sec. 2429.7 Subpoenas.

(a) Any member of the Authority, the General Counsel, any

Administrative Law Judge appointed by the Authority under 5 U.S.C. 3105,

and any Regional Director, Hearing Officer, or other employee of the

Authority designated by the Authority may issue subpoenas requiring the

attendance and testimony of witnesses and the production of documentary

or other evidence. However, no subpoena shall be issued under this

section which requires the disclosure of intramanagement guidance,

advice, counsel, or training within an agency or between an agency and

the Office of Personnel Management.

(b) Where the parties are in agreement that the appearance of

witnesses or the production of documents is necessary, and such

witnesses agree to appear, no such subpoena need be sought.

7103(a)(1), shall be in writing and filed with the Regional Director, in

proceedings arising under part 2422 of this subchapter, or with the

Authority, in proceedings arising under parts 2424 and 2425 of this

subchapter, not less than 10 days prior to the hearing, or with the

appropriate presiding official(s) during the hearing. Requests for

subpoenas made less than 10 days prior to the opening of the hearing

shall be granted on sufficient explanation of why the request was not

timely filed.

(d) The Authority, General Counsel, Regional Director, Hearing

Officer, or any other employee of the Authority designated by the

Authority, as appropriate, shall furnish the requester the subpoenas

sought, provided the request is timely made. Requests for subpoenas may

be made ex parte. Completion of the specific information in the subpoena

and the service of the subpoena are the responsibility of the party on

whose behalf the subpoena was issued. A subpoena may be served by any

person who is at least 18 years old and who

[[Page 402]]

is not a party to the proceeding. The person who served the subpoena

must certify that he or she did so:

(1) By delivering it to the witness in person,

(2) By registered or certified mail, or

(3) By delivering the subpoena to a responsible person (named in the

document certifying the delivery) at the residence or place of business

(as appropriate) of the person for whom the subpoena was intended. The

subpoena shall show on its face the name and address of the party on

whose behalf the subpoena was issued.

(e)(1) Any person served with a subpoena who does not intend to

comply, shall, within 5 days after the date of service of the subpoena

upon such person, petition in writing to revoke the subpoena. A copy of

any petition to revoke a subpoena shall be served on the party on whose

behalf the subpoena was issued. Such petition to revoke, if made prior

to the hearing, and a written statement of service, shall be filed with

the Regional Director in proceedings arising under part 2422 of this

subchapter, and with the Authority, in proceedings arising under parts

2424 and 2425 of this subchapter for ruling. A petition to revoke a

subpoena filed during the hearing, and a written statement of service,

shall be filed with the appropriate presiding official(s).

(2) The Authority, General Counsel, Regional Director, Hearing

Officer, or any other employee of the Authority designated by the

Authority, as appropriate, shall revoke the subpoena if the person or

evidence, the production of which is required, is not material and

relevant to the matters under investigation or in question in the

proceedings, or the subpoena does not describe with sufficient

particularity the evidence the production of which is required, or if

for any other reason sufficient in law the subpoena is invalid. The

Authority, General Counsel, Regional Director, Hearing Officer, or any

other employee of the Authority designated by the Authority, as

appropriate, shall state the procedural or other ground for the ruling

on the petition to revoke. The petition to revoke, any answer thereto,

and any ruling thereon shall not become part of the official record

except upon the request of the party aggrieved by the ruling.

(f) Upon the failure of any person to comply with a subpoena issued

and upon the request of the party on whose behalf the subpoena was

issued, the Solicitor of the Authority shall institute proceedings on

behalf of such party in the appropriate district court for the

enforcement thereof, unless to do so would be inconsistent with law and

the Federal Service Labor-Management Relations Statute.

[45 FR 3516, Jan. 17, 1980, as amended at 62 FR 40922, July 31, 1997]

Sec. 2429.8 [Reserved]

Sec. 2429.9 Amicus curiae.

Upon petition of an interested person, a copy of which petition

shall be served on the parties, and as the Authority deems appropriate,

the Authority may grant permission for the presentation of written and/

or oral argument at any stage of the proceedings by an amicus curiae and

the parties shall be notified of such action by the Authority.

Sec. 2429.10 Advisory opinions.

The Authority and the General Counsel will not issue advisory

opinions.

Sec. 2429.11 Interlocutory appeals.

Except as set forth in part 2423, the Authority and the General

Counsel ordinarily will not consider interlocutory appeals.

[62 FR 40923, July 31, 1997]

Sec. 2429.12 Service of process and papers by the Authority.

(a) Methods of service. Notices of hearings, decisions and orders of

Regional Directors, decisions and recommended orders of Administrative

Law Judges, decisions of the Authority, complaints, amended complaints,

withdrawals of complaints, written rulings on motions, and all other

papers required by this subchapter to be issued by the Authority, the

General Counsel, Regional Directors, Hearing Officers, Administrative

Law Judges, and Regional Directors when not acting as a party under part

2423 of this subchapter, shall be served personally, by first-

[[Page 403]]

class mail, by facsimile transmission, or by certified mail. Where

facsimile equipment is available, rulings on motions; information

pertaining to prehearing disclosure, conferences, orders, or hearing

dates, and locations; information pertaining to subpoenas; and other

similar or time sensitive matters may be served by facsimile

transmission.

(b) Upon whom served. All papers required to be served under

paragraph (a) of this section shall be served upon all counsel of record

or other designated representative(s) of parties, and upon parties not

so represented. Service upon such counsel or representative shall

constitute service upon the party, but a copy also shall be transmitted

to the party.

certificate of the individual serving the papers describing the manner

of such service. When service is by mail, the date of service shall be

the day when the matter served is deposited in the United States mail.

When service is by facsimile, the date of service shall be the date the

facsimile transmission is transmitted and, when necessary, verified by a

dated facsimile record of transmission.

[45 FR 3516, Jan. 17, 1980, as amended at 48 FR 40194, Sept. 6, 1983; 62

FR 40923, July 31, 1997]

Sec. 2429.13 Official time for witnesses.

If the participation of any employee in any phase of any proceeding

before the Authority, including the investigation of unfair labor

practice charges and representation petitions and the participation in

hearings and representation elections, is deemed necessary by the

Authority, the General Counsel, any Administrative Law Judge, Regional

Director, Hearing Officer, or other agent of the Authority designated by

the Authority, the employee shall be granted official time for such

participation, including necessary travel time, as occurs during the

employee's regular work hours and when the employee would otherwise be

in a work or paid leave status.

[62 FR 40923, July 31, 1997]

Sec. 2429.14 Witness fees.

(a) Witnesses, whether appearing voluntarily or pursuant to a

subpoena, shall be paid the fee and mileage allowances which are paid

subpoenaed witnesses in the courts of the United States. However, any

witness who is employed by the Federal Government shall not be entitled

to receive witness fees.

(b) Witness fees, as appropriate, as well as transportation and per

diem expenses for a witness shall be paid by the party that calls the

witness to testify.

[62 FR 40923, July 31, 1997]

Sec. 2429.15 Authority requests for advisory opinions.

(a) Whenever the Authority, pursuant to 5 U.S.C. 7105(i) requests an

advisory opinion from the Director of the Office of Personnel Management

concerning the proper interpretation of rules, regulations, or policy

directives issued by that Office in connection with any matter before

the Authority, a copy of such request, and any response thereto, shall

be served upon the parties in the matter.

(b) The parties shall have fifteen (15) days from the date of

service of a copy of the response of the Office of Personnel Management

to file with the Authority comments on that response which the parties

wish the Authority to consider before reaching a decision in the matter.

Such comments shall be in writing and copies shall be served upon the

other parties in the matter and upon the Office of Personnel Management.

Sec. 2429.16 General remedial authority.

The Authority shall take any actions which are necessary and

appropriate to administer effectively the provisions of chapter 71 of

title 5 of the United States Code.

Sec. 2429.17 Reconsideration.

After a final decision or order of the Authority has been issued, a

party to the proceeding before the Authority who can establish in its

moving papers extraordinary circumstances for so doing, may move for

reconsideration of

[[Page 404]]

such final decision or order. The motion shall be filed within ten (10)

days after service of the Authority's decision or order. A motion for

reconsideration shall state with particularity the extraordinary

circumstances claimed and shall be supported by appropriate citations.

The filing and pendency of a motion under this provision shall not

operate to stay the effectiveness of the action of the Authority, unless

so ordered by the Authority. A motion for reconsideration need not be

filed in order to exhaust administrative remedies.

[46 FR 40675, Aug. 11, 1981]

Sec. 2429.18 Service of petitions for review of final authority orders.

Any aggrieved person filing pursuant to 5 U.S.C. 7123(a) a petition

for review of a final Authority order in an appropriate Federal circuit

court of appeals within 10 days of issuance of the Authority's final

order must ensure that a court-stamped copy of the petition for review

is received by the Solicitor of the Authority within that 10-day period

in order to qualify for participation in the random selection process

established in Public Law No. 100-236 for determining the appropriate

court of appeals to review an agency final order when petitions for

review of that order are filed in more than one court of appeals.

[55 FR 2509, Jan. 25, 1990]

Subpart B--General Requirements

Sec. 2429.21 Computation of time for filing papers.

(a) In computing any period of time prescribed by or allowed by this

subchapter, except in agreement bar situations described in Sec. 2422.12

(c), (d), (e), and (f) of this subchapter, and except as to the filing

of exceptions to an arbitrator's award under Sec. 2425.1 of this

subchapter, the day of the act, event, or default from or after which

the designated period of time begins to run shall not be included. The

last day of the period so computed is to be included unless it is a

Saturday, Sunday, or a Federal legal holiday in which event the period

shall run until the end of the next day which is neither a Saturday,

Sunday, or a Federal legal holiday. Provided, however, in agreement bar

situations described in Sec. 2422.12 (c), (d), (e), and (f), if the 60th

day prior to the expiration date of an agreement falls on Saturday,

Sunday, or a Federal legal holiday, a petition, to be timely, must be

filed by the close of business on the last official workday preceding

the 60th day. When the period of time prescribed or allowed is 7 days or

less, intermediate Saturdays, Sundays, and Federal legal holidays shall

be excluded from the computations.

(b) Except when filing an unfair labor practice charge pursuant to

part 2423 of this subchapter, a representation petition pursuant to part

2422 of this subchapter, and a request for an extension of time pursuant

to Sec. 2429.23(a) of this part, when this subchapter requires the

filing of any paper with the Authority, the General Counsel, a Regional

Director, or an Administrative Law Judge, the date of filing shall be

determined by the date of mailing indicated by the postmark date or the

date a facsimile is transmitted. If no postmark date is evident on the

mailing, it shall be presumed to have been mailed 5 days prior to

receipt. If the date of facsimile transmission is unclear, the date of

transmission shall be the date the facsimile transmission is received.

If the filing is by personal or commercial delivery, it shall be

considered filed on the date it is received by the Authority or the

officer or agent designated to receive such materials.

shall be filed in accordance with Sec. 2429.24(a) of this subchapter.

[51 FR 45751, Dec. 22, 1986, as amended at 60 FR 67298, Dec. 29, 1995;

62 FR 40923, July 31, 1997]

Sec. 2429.22 Additional time after service by mail.

Except as to the filing of an application for review of a Regional

Director's Decision and Order under Sec. 2422.31 of this subchapter,

whenever a party has the right or is required to do some act pursuant to

this subchapter within a prescribed period after service of a notice or

other paper upon such party, and the notice or paper is served on such

party by mail, 5 days shall be

[[Page 405]]

added to the prescribed period: Provided, however, that 5 days shall not

be added in any instance where an extension of time has been granted.

[62 FR 40923, July 31, 1997]

Sec. 2429.23 Extension; waiver.

(a) Except as provided in paragraph (d) of this section, and

notwithstanding Sec. 2429.21(b) of this subchapter, the Authority or

General Counsel, or their designated representatives, as appropriate,

may extend any time limit provided in this subchapter for good cause

shown, and shall notify the parties of any such extension. Requests for

extensions of time shall be in writing and received by the appropriate

official not later than five (5) days before the established time limit

for filing, shall state the position of the other parties on the request

for extension, and shall be served on the other parties.

(b) Except as provided in paragraph (d) of this section, the

Authority or General Counsel, or their designated representatives, as

appropriate, may waive any expired time limit in this subchapter in

extraordinary circumstances. Request for a waiver of time limits shall

state the position of the other parties and shall be served on the other

parties.

extended or waived in any manner other than that described in this

subchapter.

(d) Time limits established in 5 U.S.C. 7105(f), 7117(c)(2) and

7122(b) may not be extended or waived under this section.

[45 FR 3516, Jan. 17, 1980, as amended at 48 FR 40194, Sept. 6, 1983; 51

FR 45752, Dec. 22, 1986]

Sec. 2429.24 Place and method of filing; acknowledgement.

(a) All documents filed or required to be filed with the Authority

pursuant to this subchapter shall be filed with the Director, Case

Control Office, Federal Labor Relations Authority, Docket Room, suite

415, 607 14th Street, NW., Washington, DC 20424-0001 (telephone: FTS or

Commercial (202) 482-6540) between 9 a.m. and 5 p.m., Monday through

Friday (except Federal holidays). Documents hand-delivered for filing

must be presented in the Docket Room not later than 5 p.m. to be

accepted for filing on that day.

(b) A document submitted to the General Counsel pursuant to this

subchapter shall be filed with the General Counsel at the address set

forth in the appendix.

subchapter shall be filed with the appropriate regional office, as set

forth in the appendix.

(d) A document submitted to an Administrative Law Judge pursuant to

this subchapter shall be filed with the appropriate Administrative Law

Judge, as set forth in the appendix.

(e) All documents filed pursuant to this section shall be filed in

person, by commercial delivery, by first-class mail, or by certified

mail. Provided, however, that where facsimile equipment is available,

motions; information pertaining to prehearing disclosure, conferences,

orders, or hearing dates, times, and locations; information pertaining

to subpoenas; and other similar matters may be filed by facsimile

transmission, provided that the entire individual filing by the party

does not exceed 10 pages in total length, with normal margins and font

sizes.

(f) All matters filed under paragraphs (a), (b), (c) and (d) of this

section shall be printed, typed, or otherwise legibly duplicated: Carbon

copies of typewritten matter will be accepted if they are clearly

legible.

(g) Documents in any proceedings under this subchapter, including

correspondence, shall show the title of the proceeding and the case

number, if any.

(h) The original of each document required to be filed under this

subchapter shall be signed by the party or by an attorney or

representative of record for the party, or by an officer of the party,

and shall contain the address and telephone number of the person signing

it.

(i) A return postal receipt may serve as acknowledgement of receipt

by the Authority, General Counsel, Administrative Law Judge, Regional

Director, or Hearing Officer, as appropriate. The receiving officer will

otherwise acknowledge receipt of documents filed only when the filing

party so requests

[[Page 406]]

and includes an extra copy of the document or its transmittal letter

which the receiving office will date stamp upon receipt and return. If

return is to be made by mail, the filing party shall include a self-

addressed, stamped envelope for the purpose.

[45 FR 3516, Jan. 17, 1980, as amended at 51 FR 45752, Dec. 22, 1986; 58

FR 53105, Oct. 14, 1993; 62 FR 40924, July 31, 1997]

Sec. 2429.25 Number of copies and paper size.

Unless otherwise provided by the Authority or the General Counsel,

or their designated representatives, as appropriate, or under this

subchapter, and with the exception of any prescribed forms, any document

or paper filed with the Authority, General Counsel, Administrative Law

Judge, Regional Director, or Hearing Officer, as appropriate, under this

subchapter, together with any enclosure filed therewith, shall be

submitted on 8\1/2\ x 11 inch size paper, using normal margins and font

sizes, in an original and four (4) legible copies. Where facsimile

filing is permitted pursuant to Sec. 2429.24(e), one (1) legible copy,

capable of reproduction, shall be sufficient. A clean copy capable of

being used as an original for purposes such as further reproduction may

be substituted for the original.

[62 FR 40924, July 31, 1997]

Sec. 2429.26 Other documents.

(a) The Authority or the General Counsel, or their designated

representatives, as appropriate, may in their discretion grant leave to

file other documents as they deem appropriate.

(b) A copy of such other documents shall be served on the other

parties.

Sec. 2429.27 Service; statement of service.

(a) Except as provided in Sec. 2423.10(c) and (d), any party filing

a document as provided in this subchapter is responsible for serving a

copy upon all counsel of record or other designated representative(s) of

parties, upon parties not so represented, and upon any interested person

who has been granted permission by the Authority pursuant to Sec. 2429.9

to present written and/or oral argument as amicus curiae. Service upon

such counsel or representative shall constitute service upon the party,

but a copy also shall be transmitted to the party.

(b) Service of any document or paper under this subchapter, by any

party, including documents and papers served by one party on any other

party, shall be accomplished by certified mail, first-class mail,

commercial delivery, or in person. Where facsimile equipment is

available, service by facsimile of documents described in

Sec. 2429.24(e) is permissible.

the time of filing. The statement of service shall include the names of

the parties and persons served, their addresses, the date of service,

the nature of the document served, and the manner in which service was

made.

(d) The date of service or date served shall be the day when the

matter served is deposited in the U.S. mail, delivered in person,

received from commercial delivery, or, in the case of facsimile

transmissions, the date transmitted.

[45 FR 3516, Jan. 17, 1980, as amended at 62 FR 40924, July 31, 1997]

Sec. 2429.28 Petitions for amendment of regulations.

Any interested person may petition the Authority or General Counsel

in writing for amendments to any portion of these regulations. Such

petition shall identify the portion of the regulations involved and

provide the specific language of the proposed amendment together with a

statement of grounds in support of such petition.

ent together with a statement of grounds in support of such petition.